In re Burnett

47 P.2d 745, 8 Cal. App. 2d 363, 1935 Cal. App. LEXIS 665

Opinion

MARKS, J.

This is a motion to recall a remittitur and to order a corrected remittitur to be issued nunc pro tunc.

On April 11, 1935, this court filed its decision in the matter of the Estate of W. I. Burnett, Deceased, and reversed a decree of distribution without making any provision for the payment of costs. (Estate of Burnett, 6 Cal. App. (2d) 116 [44 Pac. (2d) 435].) On June 11, 1935, a remittitur was issued in which the following erroneously appeared:' “Appellant to recover costs on appeal.” (Sec. 1232, Probate Code.)

In Estate of Erickson, 4 Cal. App. (2d) 602 [41 Pac. (2d) 939], where a similar question was before the court, a similar motion was granted. (See Estate of Johnson, 200 Cal. 307 [252 Pac. 1052].)

It is ordered that the remittitur issued by the clerk of this court on June 11, 1935, in the matter of the Estate of W. I. Burnett, Deceased, be recalled and that a corrected remittitur be issued in its place, nunc pro tunc, omitting the words, “Appellant to recover costs on appeal.”

Barnard, P. J., and Jennings, J., concurred.